SOMETHING astonishing happened Monday: Antonin Scalia, the Supreme Court’s longest-serving member and one of its most conservative justices, joined three liberal justices in a sharply worded dissent arguing for the rights of criminal suspects.
The court decided, 5 to 4, that the Constitution permits the police to swab the cheeks of those arrested of serious crimes, and then do DNA tests on the saliva samples to see if the suspects are associated with other crimes. Justice Scalia joined three liberal justices — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — in dissenting.
DNA is already revolutionizing law enforcement. The ability for police to use cheek swabs of arrestees rests on a threadbare majority. The closeness of the vote, and the unusual coalitions on either side, suggest that the matter is far from settled. Justice Samuel A. Alito Jr., who was part of the majority, rightly called the case, Maryland v. King, “perhaps the most important criminal procedure case that this Court has heard in decades.”
As prosecutors, police agencies and civil libertarians consider the ruling’s implications, Justice Scalia’s stark dissent — and the fact that President Obama’s two appointees to the court so far agreed with it — makes it worthy of scrutiny, even if he was on the losing side. His argument is deeply flawed, because he did not get his history quite right.
Justice Scalia summarized his scathing dissent from the bench — a rare act that signals sharp disagreement. His opinion opened with these lines: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”
But the Fourth Amendment’s text is not nearly so simple as he makes it out to be. It merely requires that all searches and seizures be not “unreasonable.” Its words do not distinguish between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.
Justice Scalia failed to identify even one source from the founders articulating the ultraprecise rule that he claims is the central meaning of the Fourth Amendment. And his version of the Fourth Amendment would lead to absurd results.
The government, for example, permits searches at the border to prevent contaminated livestock and plants from entering the country — is such authority permitted only because these searches are not seeking “evidence of crime?” If so, if what happens if the government at some point criminalizes the intentional introduction of diseased animals and vegetables? Why should these searches magically now become unconstitutional?
To take another example: the government requires people to pass through airport metal detectors, both to find evidence of crimes or the tools to commit them, like guns and bombs, and to save lives. These searches occur even when there is no basis for suspicion. (Consider the controversies about searches of small children and wheelchair-using elderly people.)
Justice Scalia properly notes that the Constitution’s framers loathed “general warrants,” but these colonial-era warrants had odious features that cheek swabs lack. These general warrants were issued by judges ex parte — that is, in secret, without the affected citizen present — and blocked the citizen from later taking his complaint to a civil jury and seeking damages against the oppressive official. The Fourth Amendment’s words do indeed prohibit general warrants — warrants lacking “probable cause” — but this language regulating warrants simply does not apply where no warrants are involved. For example, the police may stop and frisk without warrants, even where they lack probable cause. Certain kinds of warrantless searches — at the border, in airports, in stop-and-frisk searches and elsewhere — may exist even though a warrant to authorize these very same actions would indeed be unconstitutional.
In other words, general warrants, which were essentially “get-out-of-jail-free cards” for the police, to insulate them from civil liability, raised special problems at the time of the nation’s founding, when the framers were concerned about the arbitrary exercise of imperial authority from London.
Warrants were not always the framers’ solution; sometimes warrants themselves were the problem. And here, unlike the secret ex parte generalized warrant, the DNA in the Maryland case was collected pursuant to a law enacted by the Legislature. In approving the law, Maryland’s lawmakers knew they would run the risk of being swept up in the DNA database themselves — and balanced that risk against the potential benefits. That is nothing like a secret warrant that could be aimed at a single unpopular individual. To be sure, the framers disliked certain kinds of warrants, but when no warrant has been issued — as in the cheek swab situation — the framers simply required that the search or seizure must be reasonable.
This is precisely the question that Justice Anthony M. Kennedy, writing for the five-justice majority, squarely confronted in this landmark case: Is a policy of swabbing and DNA testing only certain arrestees — who have not been convicted and may never be convicted — truly reasonable?
On one hand, the swabbing itself is not particularly intrusive — no more so than a fingerprint or a lineup. Proper DNA testing can simultaneously exonerate innocent people who have been wrongly accused and find the bad guys — a true win-win situation — and in the process, this amazing new technology can powerfully deter crime. On the other hand, DNA testing without strict safeguards can reveal lots more personal information than a mere fingerprint. (For example, who is the suspect’s actual biological father or child?) If members of racial minorities are more likely to be wrongly arrested, they and their relatives will loom disproportionately large in the government’s DNA database.
Reasonable minds can differ on this. And therein lies the real genius of the Fourth Amendment. Contrary to Justice Scalia’s view, the framers did not answer the DNA question in 1791. Rather, the framers posed the question for us, their posterity. The distinction between criminal evidence-gathering and all sorts of other government programs and purposes is not an all-purpose touchstone or talisman. Rather, we must ponder how intrusive a given search policy is, how discriminatory it might be in application, how well justified and well administered it is, how democratically accountable it is, how it might bear upon human dignity, and so on.
The words of the Fourth Amendment mean exactly what they say. Warrantless searches are unconstitutional only if they are “unreasonable.” That rule, and no other, is the true “heart of the Fourth Amendment.”